Grey (Migration)

[2017] AATA 3163

Grey (Migration) [2017] AATA 3163 (1 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Neha Wiremu Turumanu Grey

CASE NUMBER:  1721001

DIBP REFERENCE(S):  BCC2017/1827762

MEMBER:K. Chapman

DATE:1 November 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 01 November 2017 at 5:27pm

CATCHWORDS

Migration – Cancellation – Special Category (Temporary) (Class TY) – Subclass 444 (Special Category visa) – Tribunal fees unpaid – No extension of time available – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 347
Migration Regulations 1994 (Cth), rr 4.10, 4.13

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant lodged an application for review of a decision of a delegate of the Minister for Immigration, dated 25 August 2017, to cancel his Special Category (Temporary) (Class TY) visa pursuant to the Migration Act 1958 (‘the Act’).

2. The review application form was lodged with the Tribunal on 7 September 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994 (‘the Regulations’), the review application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee, unless a determination has been made under r.4.13(4) that such fee should be reduced by 50% on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 14 September 2017.

4. An application for review will not be valid for the purposes of s.347(1)(c) in circumstances where the applicant lodges a request for fee reduction with the review application, but does not pay 50% of the prescribed fee prior to the end of the prescribed period within which the review application must be made. In the present case, an application for the Tribunal to reduce the prescribed fee was lodged with the review application on 7 September 2017. No fee payment accompanied the review application or request for fee reduction.

5. The Tribunal notes that the applicant was being held on remand regarding criminal charges, in the Arthur Gorrie Correctional Centre, at the time he lodged his review application. Tribunal Registry staff conveyed to the applicant, through correctional services staff, the requirement for him to pay the sum of $865.50 (being 50% of the prescribed fee) prior to the close of business on 14 September 2017 in order to make a valid application for review. On 13 September 2017, the Tribunal received from the applicant a new request for fee reduction and a written request for an extension of time to pay the reduced fee as he was having difficulty obtaining the necessary funds. On 13 September 2017, Tribunal Registry staff conveyed to correctional services staff that no extension of time was available to the applicant in accordance with the relevant legislation. The following day, Tribunal Registry staff again corresponded with correctional services staff to convey that no extension of time was available and provided the necessary details for payment of the reduced application fee by telephone. Correctional services staff confirmed to the Tribunal Registry that they would advise the applicant of the aforementioned information.

6. The applicant did not make any payment to the Tribunal by the close of business on 14 September 2017, nor has he done so by the time of this decision. In order to afford the applicant natural justice, by correspondence dated 19 September 2017, the Tribunal Registry wrote to him inviting his comment by 12 October 2017 on the validity of the application for review, in light of the lack of payment of an application fee. By letter dated 12 October 2017, from Samuta McComber Lawyers, a response to the invitation was received by the Tribunal. The response submitted mitigating factors concerning the applicant’s past offending, maintained there were arguable grounds to challenge the merits of the decision to cancel his visa, indicated he cannot presently pay the requisite fee, and requested the Tribunal to exercise any available discretion to provide more time for such fee to be paid. The response did, however, also include the following remarks, “Obviously, we appreciate that the Tribunal is bound by the law, and specifically s 347(1)(c) of the Migration Act 1958, s 4.13 of the Migration Regulations 1994.” The Tribunal has duly considered the aforementioned response provided on behalf of the applicant.

7. Following careful consideration of the evidence, the Tribunal finds that the applicant did not pay the sum of $865.50 prior to the close of business on 14 September 2017, and that he was aware of the requirement to make such payment in order for him to lodge a valid application for review. The Tribunal notes that it has no discretion to waive the legislatively prescribed fee requirement. Accordingly, the Tribunal finds that as the applicant did not pay 50% of the prescribed fee prior to the end of the prescribed period, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.  

   DECISION

8. The Tribunal does not have jurisdiction in this matter.

   K. Chapman
   Member